For Seattle Attorney, A Bacterium Brings Riches - and Enemies
by Rachel Zimmerman, The Wall Street Journal/Northwest
June 29 2001
When news broke last month of an outbreak of E. coli at a Kennewick, Wash., elementary school, Seattle attorney Bill Marler saw his opening.
It was a familiar drill for Mr. Marler: He e-mailed a reporter at the local paper, watched the next day as his opinions on the danger of undercooked beef tacos were quoted extensively, and then waited for calls from parents seeking a lawyer.
He now represents eight of the 12 victims.
The little bacterium E. coli has been a big moneymaker for the 41-year-old Mr. Marler—and the source of a great deal of controversy. Earlier this decade, he earned more than $10 million while representing children made gravely ill by its presence in hamburgers sold at Jack in the Box restaurants and in apple juice produced by Odwalla Inc. He recently established a law firm devoted to representing victims of food-borne illnesses.
And now Mr. Marler has launched a new business, looking to profit off the other side of the E.-coli scare: He and a former legal adversary have started OutBreak Inc., a consulting firm that helps companies avoid food-safety problems—and lawyers like him.
“I don’t know how I feel about a business that thrives on fear and misery,” says Chris Gallagher, a spokesman for Odwalla, based in Half Moon Bay, Calif. “But my guess is that Mr. Marler ‘s new enterprise will be extremely profitable for him—both politically and financially.”
In fact, Mr. Marler , who lives on Bainbridge Island with his wife and two young daughters (who aren’t allowed to eat hamburger) is looking to ride E. coli to something more than riches. He sees it carrying him as far as the U.S. House of Representatives.
Mr. Marler ‘s political ambitions have been apparent at least since 1977, when as a 20-year-old he became the youngest person ever elected to the Pullman City Council. He served as finance chairman of Gov. Gary Locke’s 1996 campaign.
These days, Mr. Marler routinely takes part in high-level brainstorming sessions as a member of the governor’s “kitchen cabinet”—and, he says, thinks “constantly” about running for Congress. It’s an idea long in the percolation; even in 1995, he was thinking about it seriously enough to spend $20,000 to test the waters for a possible bid, only to conclude his name was not yet familiar enough.
His work in the years since may have propelled Mr. Marler over that hurdle. “Along with death and taxes, the chances of Bill Marler running for office are great,” says Blair Butterworth, a Seattle political consultant who conducted the poll for Mr. Marler . He says the lawyer has “an ideal profile” for politics.
Those who have stood against him in lawsuits might disagree. Mr. Marler ‘s aggressive profile-raising tactics, which include leaking sealed documents and courting the media whenever an outbreak occurs, win him a lot of business—but also draw a lot of flak.
“Ambulance chasing,” is what Kenton Brine, an insurance-industry lobbyist in Olympia, Wash., calls Mr. Marler ‘s approach to drumming up clients. “It may be legal, but it’s ethically questionable.”
The plans for OutBreak Inc. only add fuel to the controversy. Mr. Brine says it smacks of “profiteering by an aggressive lawyer” under the guise of helping companies prevent illness.
Mr. Marler and his partner in OutBreak Inc., Bruce Clark, hold seminars that include the screening of a videotape of a young E. coli victim near death, and this warning from Mr. Marler , who won a $15.6 million settlement for that youngster’s family: “If you don’t care about food safety, this could happen to your company—and I could show up on your doorstep, subpoena you, take your documents and make your life miserable.”
Blunt talk from Mr. Marler isn’t surprising. Consider how he explains why a dead victim isn’t necessarily the most lucrative: “The best case is a quadriplegic who requires round-the-clock care.”
To his fans, OutBreak is evidence of Mr. Marler ‘s fundamental goodness. “He’s found this gravy train, yet he starts another business that could stop it,” says Mr. Butterworth, the political consultant. “That’s not an ambulance chaser.”
So far, about a dozen companies have hired OutBreak, including Golden Grain Pasta and soupmaker Nile Spice, both Seattle-based units of Quaker Oats Co. of Chicago, and Bear Creek Corp. of Medford, Ore., publisher of the Harry & David catalog. “People don’t really want to hear what he has to say,” says Bob Lipnik, sales manager for Seattle-based Pacific Coast Cos., a food-additive distributor. “But everyone should.”
Mr. Marler pleads guilty to plugging himself. He has, for example, hired a public-relations specialist—who just mailed 1,000 news releases to introduce reporters, lawyers and opinion makers around the country to Mr. Marler ‘s new ventures. Even on topics unrelated to E. coli, Mr. Marler is confident someone will be interested in his opinion. For instance, following a shooting on a Seattle bus, he dashed off a “backgrounder” to reporters offering various legal theories about the case.
Nevertheless, Mr. Marler acknowledges that his eagerness to pounce on every E. coli casualty makes him an easy mark.
But his model is one that any trial lawyer with a conscience should follow, Mr. Marler argues. His business, he says, “is all about taking money away from the insurance companies and giving it to the kids.”
And the first step is to sign up the parents. As he showed in Kennewick, Mr. Marler likes to enlist the press in helping him make his pitch.
It works, and not just in Kennewick. Last June, two dozen children in Atlanta fell ill from E. coli, some seriously, after swimming in a public pool. Mr. Marler—who happened to be in town to give a speech at the annual convention of the International Food Technologists—quickly called the reporter covering the story for the Atlanta Journal-Constitution. The next day his opinions were splashed across the front page, and Mr. Marler now represents six of the children.
“You can’t contact the family directly; that’s unethical,” Mr. Marler says. “But I get myself out there and, eventually, I’ll usually get the case. You can look at it and say, ` Marler ‘s manipulating the press,’” he says, “or you can look at it and say, `Isn’t it better that the best person around is available to represent you?’”
At his new law firm—in a penthouse suite of Seattle’s Columbia Tower, decorated with framed settlement checks and newspaper stories about himself—Mr. Marler spends most of his time on food-related litigation, which brings in about 90% of the firm’s income. He and Mr. Clark—once an opponent, as lead defense attorney for Jack in the Box—operate the consulting side of the business as a two-man show.
The videotape they screen at their seminars is of a Jack in the Box plaintiff: Brianne Kiner, made gravely ill by a hamburger in 1993. The tape shows Brianne—who was in a coma for five weeks, had her large intestine removed and suffered slight brain damage—lying in a hospital bed, a thick scar mapping an incision that ran from her chest to her pelvis. Now 15, she also suffers from asthma and diabetes. The $15.6 million that Brianne’s family won in 1995 from Jack in the Box, a unit of San Diego-based Foodmaker Inc., was the largest settlement in Washington history.
OutBreak Inc., Mr. Marler says, was created in part to assuage the guilt he sometimes feels over how much money he earns from E. coli cases. Not that his conscience is urging him to stop profiting from poisoned consumers. If OutBreak’s success were to put his law firm out of business, he says, “that’d be fine by me. But it’s highly unlikely.”
Mr. Marler first became entwined with E. coli in 1993, when he brought the Kiner case to the firm he then worked for, Keller Rohrback. But after the firm decided not to make him a partner—denying him a partner’s share of any settlement—Mr. Marler left, taking the Kiners with him.
“He wanted a specific commitment from us as to what his cut would be,” says Kirk Portmann, a partner at Keller Rohrback. “That, historically, is not the way our firm, or any other I know of, operates.” (Mr. Marler ultimately gave Keller Rohrback an undisclosed portion of the Kiner settlement.)
Mr. Marler couldn’t have picked a better time to create an E.-coli niche. As recently as 15 years ago, knowledge of E. coli was limited to the world of specialists: scientists, epidemiologists and those in the food business. Today, with outbreaks linked to such staples of the American diet as hamburgers and apple juice, E. coli has entered the vernacular.
Dave Theno, vice president of technical services for Jack in the Box, says the emergence of this dangerous strain, known as E. coli O157:H7, is not the only thing that’s changed in the last 15 years. “What’s new is someone saying, `I ate out, I feel sick and now I’m getting a lawyer,’” he says.
Of course, Mr. Marler isn’t the only member of the bar representing E. coli clients. “He’s just the one marketing himself the most aggressively,” Mr. Portmann says. “He’s really out there. It’s a little over the top.”
The families who have retained Mr. Marler say the same sort of thing, but with different words: “I wanted a very young, hungry lion,” says Suzanne Kiner, Brianne’s mother.
But a lion with a soft side. After interviewing a number of Seattle attorneys, Ms. Kiner remembers, she invited Mr. Marler to see Brianne in the hospital.
“I brought him into the room, and he looked at her and he backed up until the wall stopped him,” she says. “Tears were streaming down his face.” The next day, “a wonderful white package came, and in it was a wonderfully loved bear—a brown-golden bear in a hand-knit sweater—and a note came with it, and it was from Bill and his wife.” Mr. Marler was hired not long after.